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Suitability for 498

(Querist) 07 May 2015 This query is : Resolved 
Good evening dear experts, one of my relatives living together without marriage from 5 years. They have 1child. Now lady partner is harassing and trying to lodge 498 in near by police station. Is she eligible to 498?
SAINATH DEVALLA (Expert) 07 May 2015



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Anti Dowry Provisions Of 498A Applicable To Live-In Relationship – Ruled Supreme Court Of India !!!


Supreme Court of India today ruled in a case that dowry laws would also apply to live-in relationship. That means you could be prosecuted under anti-dowry provisions of section 498A of the IPC if you are accused of demanding dowry by your live-in partner. At the first instance this may appear wise jurisprudence but not if you look beyond the veneer. In my view such ruling are typical example of “legislating from the bench”. There is unassailable merit as to why Judges should avoid the temptation of filling the legal void by legislating from the bench. Enacting new laws to address evolving social needs is a legislative function and there is reason why it is so. Judges live in ivory towers. If they feel it is incumbent upon them to fill the legal void by legislating through their rulings then they are down a slippery slope.

In an interesting case of Dowry harassment Supreme Court bench comprising of Justices Arijit Pasayat and A K Ganguly brushed aside the argument of appellant Subbarao that he can not be prosecuted under 498A as he and the complainant are not married but only in a live-in relationship. The bench observed, “Can a person who enters into a marital agreement be allowed to take shelter behind a smokescreen to contend that since there was no valid marriage, the question of dowry does not arise”. The bench further elaborated on the reasoning, saying, “Such legal niceties would destroy the purpose of the provisions. Such hairsplitting legalistic approach would encourage harassment of a woman over demand of money."

Prima-facie this may sound good jurisprudence but let me explain you why adventurously spirited Judges trying to trespass the legal boundaries could be precipitating disaster in some other situation. Why not disallow second marriage under Muslim marriage act if the husband is not economically well off to ensure the well being of both wives? Sounds good jurisprudence and ruled with good conscience…isn’t it! No Judge could be outlandish enough to rule this because the Muslim Marriage Act does allow bigamy. If society feels we should do away with this, we would rather have Muslim Personal Law Board amend the law, than have judges assume the legislative role incumbent upon them in absence of legislation. There is a risk in allowing Judiciary legislate in the interest of the evolving need of the society, as often times the issue in question could be beyond their sphere of understanding. Such lack of understanding is conspicuously evident in the case of Subbarao.

A man and woman enter into a live-in relationship because they are not prepared for a marriage like relationship with high exit barrier. The parties involved are cognizant of the risk and instability involved in a live-in relationship, and the trade off between the insecurity and flexibility is perfectly acceptable to them. Probably that is the reason why they chose live-in over the marriage. Many researches have shown that most couples in a live-in relationship eventually marry and that they often treat the live-in period as an endurance test precursor to a life long commitment. The partnership between man and women in a live-in relationship is always equitable because of the inherent dynamics of the relationship. The domestic violence is observed less often and dowry is unheard of in a live-in relationship. The couples maintain their separate bank accounts and keep control over their finances. Often they set up joint account with equal contribution to fund their expenses and the assets are acquired with equitable (may not be equal) contributions. The couples are educated and matured to handle the dynamics of a live-in relationship.

I am not trying to make a case for the live-in relationship; rather I am just describing as it is today. If we need laws to address this new social reengineering which is still in its nescence in India, we have to legislate it with a clear understanding of its nuances and social ramifications. The Lawmakers are vested with this responsibility not the Judges as lawmakers has the leverage of understanding the evolving need of the society and they also have the reach to social organizations to borrow wisdom to comprehend them in context. By design Judges don’t have that leverage to their disposal and therefore they must resist the temptation to enact laws to abet or impede such social re engineering.

This Judgment will provide no further security to women in our society. It will only strain the man woman relationship by vitiating their already cynic minds. Nothing could be more disastrous if Judges envision to make the court room as a laboratory to research social reengineering.
Samanth kumar (Querist) 08 May 2015
Thank you very much sir.
Rajendra K Goyal (Expert) 08 May 2015
The expert has cleared the cloud.
Samanth kumar (Querist) 08 May 2015
Thank you sir
ajay sethi (Expert) 08 May 2015
thanks for update Mr sainath
malipeddi jaggarao (Expert) 08 May 2015
Well advised by expert Mr.Sainath.
Samanth kumar (Querist) 08 May 2015
Good evening Sirs , is this type of case is eligible for divorce from court ?
SAINATH DEVALLA (Expert) 09 May 2015
When there is no marriage and just a live in relationship,why are U asking about divorce? Is there something else in the query?
Samanth kumar (Querist) 09 May 2015
sir, that lady lodged complaint 498a in policestation yesterday.but not yet registered the case. in a live in relation what steps by police ??
SAINATH DEVALLA (Expert) 09 May 2015
She has a right to file 498A, I have already illustrated with a ruling,still U are further extending UR doubts beyond sense.
I have a strong feeling that U are hiding many more facts relating to UR case.What made U mention the word divorce,reply.
Samanth kumar (Querist) 09 May 2015
Sir the male partner is asking many doubts . It is new type of case here. He is now ready to separate , so asking legal problems and opinion sir. If 498a is register he is ready to bail.
SAINATH DEVALLA (Expert) 09 May 2015
Now the time has come for UR male friend to consult a local lawyer and act as per his advice.
T. Kalaiselvan, Advocate (Expert) 09 May 2015
Well advised with latest update on the issue, kudos.
Biswanath Roy (Expert) 09 May 2015
LET US SEE WHO CAN FILE A COMPLAINT U/S.498-A,IPC.
The essential ingredients of this section are as follows :-
1. The victim is a married lady (she may also be a widow);
2. She has been subjected to cruelty by her husband or the relative of her husband;
3. Such cruelty consisted of either (a) harassment of the woman with a view to coerce meeting any unlawful demand for any property or valuable security;
4. A willful conduct by the husband or the relative of her husband of such a nature as is likely to lead the lady to commit suicide or to cause grave injury to her life, limb or health;
5. Such injury aforesaid may be physical or mental.
In the given facts author described the woman as "live in partner", if it is so how she can lodge a diary u/s.498-A,IPC?
Apart as stated above in my view it is a case of domestic relationship and the woman can get all monitory benefits and free accommodation in view of the Supreme Court judgement- INDRA SHARMA Vs. V.K.V. SHARMA Criminal Appeal No.2009 of 2013 (@ SPECIAL LEAVE PETITION (CRL 4895 OF 2012) Judgement delivered by,- Hon'ble Mr. Justice Radhakrishnan & Hon'ble Mr. Justice Pinaki Chandra Ghosh. JUDGEMENT DATE:- November 26, 2013.


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